“I am intending to institute divorce action against my spouse, but have no idea where to start or how to go about in obtaining a decree of divorce. I have minor children whose interest must be protected during the divorce. My husband is abusive toward me and I fear for the safety of my children. What must I do?”
In answering the above mentioned question it is advisable to first advise about the Family Advocate before we deal with the divorce procedure.
The Family Advocates are a integrate part of the divorce proceedings when there are minor children involved.
WHAT IS THE ROLE OF THE FAMILY ADVOCATE?
The Family Advocate assists the parties to reach an agreement on disputed issues, namely custody, access and guardianship. If the parties are unable to reach an agreement, the Family Advocate evaluates the parties’ circumstances in light of the best interests of the child and makes a recommendation to the Court with regard to custody, access or guardianship. This will normally require you to complete an “Annexure B” form in divorce proceedings calling upon the Family Advocate to do a formal evaluation and submit their recommendations to the Divorce Court, pertaining to the interest of the minor children.
If there is any allegation of violence and/or alcohol or drugs misuse made in the pleadings the Family Advocates will insist on a report to be compiled before a decree of divorce is issued.
HOW DOES THE FAMILY ADVOCATE DO THIS?
Upon application by the parties, the Family Advocate institutes an inquiry during which the Family Advocate, assisted by a Family Councillor (normally a trained social worker), interviews the parties to ascertain their personal circumstances and the background details to their matter. The Family Advocate then interviews the children to allow them the opportunity to be heard. This prevents the child from having to appear in Court.
THE BENEFITS OF ENGAGING THE ASSISTANCE OF THE FAMILY ADVOCATE:
· The Family Advocate can amend or terminate parental rights and responsibilities agreements registered by the Family Advocate’s office. This means that the parties do not have to go to court if they want to amend the agreement when the need arises.
· In the process of consulting, if the parties reach agreement on disputed issues the matter does not proceed to trial, thereby saving legal costs and time. In this event the Family Advocates will endorse any agreement reached between the parties if same is in the best interest of the minor children.
· Courts or Judicial officers are required by law to consider the report and/or recommendations of the Family Advocate when making a decision as to what is in the best interest of the minor child.
· Courts will not readily give a decree of divorce where there is a dispute regarding minor children without the report or recommendations of the Family Advocate.
NOW DEALING WITH THE DIVORCE PROCEDURE:
It is advisable that you contact an attorney when you intent to institute divorce proceedings and if you do not have the necessary funds available to obtain the assistance of a private attorney, you may approach the offices of Legal Aid South Africa for free legal assistance with your divorce matter.
WHAT YOU WILL NEED BEFORE CONSULTING WITH THE ATTORNEY:
· Your marriage certificate
· A Copy of the anti-nuptial agreement entered into between yourself and your spouse, in the event of marriages concluded out of community of property.
· Copies of the birth certificates of the minor children conceived during the marriage.
· Pension benefits statement of yourself and your spouse, if available.
The attorney will see to it that a divorce summons is issued by either a Regional Court or High Court with the necessary jurisdiction.
The summons must contain several important particulars, including the reasons why you want to get a divorce and what you want to claim from the other party.The above mentioned particulars are very important especially pertaining to the pension fund of the other party due to the fact that most if not all of the funds require that precise wording is used in the decree of divorce before any payment will be made by the fund.
The summons is served on your spouse by the Sheriff and must the service be affected personally due to the fact that the summons pertains to the status of a person.
Thereafter the Defendant i.e. your spouse must decide if he or she agrees to the summons or to defend the summons, whereby he or she must consult an attorney to file the necessary pleadings to oppose the action.
In the event that the summons is opposed, pleadings will be exchanged between the attorneys, wherein the disputes will be crystallized to enable the parties to fully prepare for trial.
At any stage during the divorce procedure or even in some instances prior to divorce action the parties may attempt to settle the divorce and have a proper deed of settlement drafted.
After the pleadings have been exchanged or a deed of settlement is signed you will be able to obtain a court date to finalize the divorce.
1) Don’t let emotions and personal clashes get in the way of issues such as custody and access, maintenance and the division of the estate.
2) The longer you take to reach a settlement, the more the lawyers earn.
3) Divorce law cannot change because of the attorney you hire or the tactics you employ.
4) Be totally honest with your attorney. Do not attempt to hide assets, including your pension benefit or interest – your attorney can only act in your best interest if he knows all the facts.
5) There is no winner in a divorce action. Your attorney will help you to reach an informed settlement.
6) The best interest of the children is of utmost importance and such prevail above any personal issues between yourself and your spouse.
· Everyone’s Guide to South African Law, 3rd Edition, AM Anderson, A. Dodd, MC Roos